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Why Japan is wrong about the moratorium

Japan argues that the IWC can maintain the moratorium whilst still give it a whaling quota. This is fundamentally wrong and all attempts to accommodate Japan's arguments should be rejected.

Japanese whalers

M Votier

The machinations of the International Whaling Commission (IWC) are often varied and challenging.

None more so than Japan’s constant attempts to achieve a resumption of commercial whaling despite continued opposition from the conservation-minded countries.

In 2014, at the last meeting of the IWC, Japan once again tried but failed to secure the necessary support for a commercial whaling quota that it called ‘Small-Type Coastal Whaling’ (STCW) for minke whales from the Okhotsk Sea-West Pacific Stock (IWC/65/16).

In light of this latest defeat, Japan sought to force the pro-conservation countries into a dialogue through the IWC website, hoping that some of these countries would say something on the record that Japan could seize upon to attack them at a later date.

Japan’s questionnaire was laced with loaded questions, designed to trap the unwary respondent; questions such as,

‘Q2: If you are opposed to all commercial whaling based on national policy not based on paragraph 10(e), please clearly explain this.

Q 7: If you oppose Japan’s small-type coastal whaling proposal because of its killing methods, please describe other killing methods that you could support.’

Japanese whaling shipWDC/M Votier

In these types of questions, it is clear that whoever was advising Japan was skilled in the formulating of leading questions. Any nation answering these specific questions would have been gifting Japan text into which to sink its teeth and further gnaw away at opposition to STCW, a category of whaling not

recognised by the IWC.

Japan has indicated to this year's IWC meeting scheduled for October 2016, that it will not be putting forward another request, but it will seek discussions on advancing its case. In preparation, Japan has submitted Japan's discussion document IWC/66/16, which again includes its fundamental argument that the IWC can allocate commercial whaling quotas despite the continuation of the moratorium on commercial whaling enshrined in paragraph 10(e) of the whaling convention.

But can the IWC, as argued by Japan in IWC/65/21 (attached in IWC/66/16), establish commercial whaling quotas without modifying 10(e) and undermining the moratorium?

Japan argues that the original Schedule Amendment, establishing the moratorium on commercial whaling, allows for the setting of potential future catch limits for commercial whaling subject to some very strict criteria.

Indeed, Japan claims that,

"The language of Schedule paragraph 10(e) allows the resumption of commercial whaling when a sustainable catch limit is provided based on the best scientific advice. Even Schedule paragraph 10(e) doesn’t need to be amended or deleted as the steps to resume commercial whaling is built in the current language. In other words, the commercial whaling moratorium doesn’t need to be “lifted”.” [Emphasis added]

However, in doing so Japan seeks to avoid, or obviate, the fact that the opening sentence of paragraph 10(e) is very clear in its intent,

“Notwithstanding, the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for 1985 coastal and the 1985/86 pelagic seasons and thereafter shall be zero.” [Emphasis added]

Japanese whaling shipWDC/M Votier

The Commission was clear in its decision that quotas for commercial whaling would be zero thereafter and did not set a date for such times that commercial quotas would, or should be re-established.

The Commission did, however, in the second sentence say that the impact of this decision should be kept under review and that the Commission should undertake a comprehensive assessment of the effects of this decision on whale stocks and then, and only then, consider the establishment of other catch limits. However, the text is explicit in that the IWC would have to ‘consider modification of this provision and the establishment of other catch limits’.

Reading the paragraph objectively, it should be noted that the drafters wrote this as a complete sentence; there is no comma after ‘consider modification of this provision’,but an ‘and’, implying that both clauses should be read together and that the subsidiary clause, ‘the establishment of other catch limits is dependent on the former, primary clause, ‘consider modification of this provision’. Therefore, there cannot be an allocation of non-zero catch limits without a modification of 10(e) and the IWC Schedule is explicit in stating that any future catch limits for commercial whaling would require modification of 10(e).

In their questionnaire to the IWC Parties, at 1(d), Japan argues that any quota covered by a new subparagraph 10(f) for STCW would not impinge on 10(e) and that 10(e) would remain operative for ‘depleted whale stocks’.

However, 10(e) is explicit in covering ‘whales from all stocks’and so, noting the arguments above would have to be amended to be compatible with any new provision 10(f) that allocated quotas counter to the existing language of 10(e).

We can, therefore, conclude that Japan’s proposal is not compatible with the existing moratorium and should be rejected by the IWC as just another attempt to circumvent the current ban on commercial whaling.